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Amendments to the Employment (Jersey) Law 2003

The Employment (Amendment No. 10) (Jersey) Law 2016 was registered by the Royal Court on 21 October 2016. It contains several relatively minor consequences for the Employment (Jersey) Law 2003 (the "Law"), which come into force on different dates. The table below sets out the key changes which came into force on 28 October 2016 and those which come into force on 1 April 2017. This is in addition to other recent changes including:

The addition of age discrimination as a protected characteristic for the purposes of the Discrimination (Jersey) Law 2013 (which came into force on 1 September 2016)

The increase in the maximum weekly amount of pay for the purposes of calculating redundancy pay, which has risen to 700 (with effect from 25 September 2016).

In force In force now

In force now

In force now

In force 1 April 2017

Summary of Change

One of the oddities of the Law since its inception has been the "two thirds rule". Under this rule, those on a fixed term contract of 26 weeks or less gained unfair dismissal protection far more quickly than those on other types of contract including those on permanent contracts. Their unfair dismissal protection arose after completing either two thirds of their contract or 13 weeks (whichever was the longer). The oddity of the situation only increased when the "standard" qualifying period for unfair dismissal was increased to 52 weeks for employment commencing on or after 1 January 2015.

That oddity has now been removed by Amendment 10 to the Law. This means that all employees must have 52 weeks of service with their employer to qualify for protection against unfair dismissal subject to the exceptions within the Law to that period (such as dismissal for a family related reason or for asserting a statutory right). There is an exception for existing contracts of 26 weeks or less as at 28 October 2016.

Amendment 10 also amends Article 71 of the Law, which concerns those engaged as replacements for employees absent wholly or in part because of pregnancy or childbirth. The current position is that it is fair to dismiss such employees on the return of the absent employee provided that they are informed in writing at their engagement Amendment 10 extends the circumstances to which this applies to pregnancy, childbirth or adoption, including but not limited to absence because of maternity leave, adoption leave or parental leave.

The Law on redundancy has been amended to make it clear that remuneration paid to an employee under his or her employment contract in respect of redundancy goes towards discharging an employer's liability to make a statutory redundancy payment. Conversely, payment of any statutory redundancy payment goes towards discharging an employer's liability to pay a redundancy payment to an employee under his or her employment contract.

Amendment 10 amends the Law to provide for up to four weeks' pay in compensation (in addition to any potential fine for non-compliance which may be levied under the Law) for any failure to provide: written particulars of employment (or any change thereto); or a written itemised pay statement.

There is a new Part 5B of the Law, which provides certain rights for a reservist i.e. a person who is a member of the reserve armed forces.

A reservist must notify their employer in writing of their intention to return to work following a service call up. This notice must be given by the third Monday after the end of service and must state the date on which the reservist will be available for work, which must be no later than 21 days after the latest date on which notice may be given.

An employer must allow a reservist to return to work at the first opportunity at which it is reasonable and practicable to do so. A reservist must be allowed to return to the job in which he or she was employed immediately before his or her service or to an equivalent job. The right to return includes the right to such seniority, pension rights and all other rights and no less favourable terms and conditions as the reservist would have had if he or she had not been absent on service. A reservist's period of service as a reservist does not break his or her period of continuous employment.

Should employers fail to honour these rights, the Tribunal may make a direction for reinstatement and reengagement and it may award compensation of up to 26 weeks' pay for an employer's failure to respect a reservist's rights as well as further compensation of up to 26 weeks' pay if an employer does not fully comply with the terms of the Tribunal's direction.

The Law also makes provision for employers to be able to engage and dismiss temporary replacements for reservists on the same basis as those for temporary staff employed to cover pregnancy, childbirth, adoption and associated leave periods.

For further information or professional advice please contact our lawyers below:

Please note that this briefing is intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such. Carey Olsen 2016

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